In Re BABY S. Appeal of S.S.
128 A.3d 296
Pa. Super. Ct.2015Background
- S.S. (Appellant) and L.S. (intended father) entered assisted‑reproduction agreements: an egg‑donation agreement and a written gestational‑carrier contract naming S.S. and L.S. as the intended legal parents; J.B. was the gestational carrier.
- Embryo (donor egg + L.S. sperm) was transferred to J.B.; pregnancy confirmed and Baby S. was born August 5, 2014.
- After marital breakdown, S.S. refused to complete pre‑birth steps to be named on the birth certificate and repudiated the surrogacy arrangement; J.B. sought a court order to establish parentage and for birth‑certificate amendment.
- Trial court found the parties’ agreements valid and enforceable, held S.S. breached the gestational‑carrier contract, declared S.S. and L.S. the legal parents, and awarded J.B. contractual fees; S.S. appealed.
- Appellant argued surrogacy contracts are unenforceable as against public policy and that parentage can only be established by biology or adoption; appellees relied on contract terms, DOH assisted‑conception practice, and precedent recognizing enforceability of reproductive agreements.
Issues
| Issue | Appellant's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are gestational‑surrogacy agreements enforceable in Pennsylvania or void as against public policy? | Surrogacy contracts are unenforceable; legislature has not sanctioned parentage by contract and Adoption Act is the exclusive route for non‑genetic parentage. | Agreements reflect parties’ intent, DOH has long practice facilitating intended‑parent registrations, and prior case law supports enforcement of reproductive agreements. | Court enforced the gestational‑carrier contract; not contrary to public policy and S.S. is legal mother. |
| Could S.S. become legal parent only via adoption requiring termination of J.B.’s rights? | Adoption (and termination of J.B.’s rights) required because only adoption creates parentage when no genetics. | J.B., as gestational carrier with no genetic link, had no parental rights to terminate; intended‑parent procedures and contracts govern. | Court held J.B. had no parental rights by virtue of being gestational carrier; adoption was not necessary. |
| Does absence of statutory authorization render such contracts invalid? | Legislative silence shows reluctance; absence of statute should preclude judicial creation of parentage‑by‑contract. | Legislative silence and long administrative practice do not establish dominant public policy against contracts; courts may enforce agreements. | Court relied on precedent and DOH practice to refuse invalidation based on legislative silence. |
| Can S.S. avoid contractual obligations due to impossibility or public policy after repudiation? | Post‑transfer repudiation makes performance impossible or violative of public policy; contract should be void. | Baby would not exist but for the contracts; parties freely entered agreements; enforcement aligns with evolving reproductive practice. | Court rejected impossibility/public‑policy claims and found S.S. breached the contract and liable per its terms. |
Key Cases Cited
- Ferguson v. McKiernan, 940 A.2d 1236 (Pa. 2007) (upheld enforceability of reproductive agreement allocating parental rights and obligations)
- J.F. v. D.B., 897 A.2d 1261 (Pa. Super. 2006) (gestational carrier without genetic connection is not legal mother; court declined to decide contract validity)
- Eichelman v. Nationwide Ins. Co., 711 A.2d 1006 (Pa. 1998) (clear contract language must be enforced absent conflict with public policy)
- Shick v. Shirey, 716 A.2d 1231 (Pa. 1998) (courts may recognize causes of action absent legislative action but should not infer public policy from legislative silence)
- Olympus Corp. v. Canady, 962 A.2d 671 (Pa. Super. 2008) (standards for declaring contracts void as against public policy)